City Asked To Void $29 Million Voting Machines Contract

By Ralph Cipriano
for BigTrial.net

The manufacturer of Philadelphia's controversial new voting machines, the ExpressVote XL, violated city law by failing to disclose that it had hired lobbyists and consultants to help land a $29 million contract with the city.

The discovery that Election Systems and Software LLC, or ES&S, had hired two lobbying firms, Duane Morris and Triad Strategies, was made by Controller Rebecca Rhynhart during an ongoing investigation of the city's procurement process, which the controller has repeatedly said has been compromised, and that's why she wanted to block payment on the $29 million contract.

ES&S also didn't disclose campaign contributions made by its lobbyists to a couple of commissioners on the Board of Elections. Together, the violations amount to a serious enough offense that the city would be justified in voiding the $29 million contract, according to the controller, and the city solicitor's office. ES&S is also on the hook for a ten percent fine, or $2.9 million, according to the city solicitor, which the company has announced it will pay if the city proceeds with the contract.

The controller reported her preliminary findings to the city solicitor's office, which has bounced the issue over to the city's Board of Elections. The board has scheduled a 11 a.m. meeting tomorrow to try and figure out what to do. In a letter to the Board of Elections, City Solicitor Marcel S. Pratt is asking the board to weigh the issues and "render a determination whether the contract should be voided or remain in effect."

While the controller and a bunch of activists have repeatedly called on the city to void the contract with ES&S, the city's procurement office apparently wants the Board of Elections to stay the course, and ram the voting machines purchase through.

In a letter to the Board of Elections, Procurement Commissioner Monique Nesmith-Joyner, says that as far as the purchase of the new voting machines is concerned, the train has left the station.

"As of today, ES&S has delivered, and the city has accepted, over 3,200 voting machines," Nesmith-Joyner wrote. At present, the city owes ES&S more than $18 million, and has at least one outstanding invoice of $7.1 million. Further, she writes, "In anticipation of accepting these machines, the city has entered into a one-year lease for a warehouse facility for $777,000, and has spent over $87,000 to rent and purchase vehicles to transport the machines between city facilities."

Our new nearly 300-pound machines require a climate controlled warehouse. The city also has spent an additional $1.5 million with an unnamed consultant to "provide project management guidance on this roll-out," Nesmith-Joyner wrote. "To date, there has been over $20 million of direct and indirect costs incurred."

"Lastly, restarting the procurement process at this time would make it impossible to acquire and roll-out new machines, schedule public demonstrations, and train election workers by the November 2019 election and unlikely to do so in time for the May 2020 presidential primary election," Nesmith-Joyner wrote. "Consequently, the city would be at risk of failing to comply with the Commonwealth's mandate to have voting machines with a voter-verifiable paper ballot in place for 2020."

In response, the controller also wrote the Board of Elections, asking them to postpone a decision on whether to void the voting machines contract until the controller's ongoing investigation is complete. Earlier this year, the controller sent out a couple series of subpoenas, seeking all kinds of previously confidential information about the procurement process, but the city only got around to responding to many of those subpoenas earlier this month.

According to the controller, ES&S failed to disclose the employment of lobbyists in 2017 and 2018. ES&S also failed to disclose $1,250 in contributions made by its lobbyists to city Elections Commissioner Al Schmidt, and $500 to Elections Commissioner Lisa Deeley.

"In the past, failures to meet mandatory disclosure requirements have resulted in the vendor's disqualification by the city of Philadelphia," Rhynhardt wrote. She cited a case last spring where the city "disqualified U.S. Facilities Inc., a minority-owned business, from bidding on a contract for failing to disclose political contributions totaling less than $500."

At the time, Mike Dunn, a spokesman for Mayor Jim Kenney was quoted in The Philadelphia Tribune as saying, "these laws are well known for their strict, mandatory requirements for disclosing political contributions and the resulting consequences for non-compliance."

But whether the city will apply equal justice to ES&S is an open question. In the past, Mayor Kenney has said the city did everything right when it picked its new voting machines. And when asked about the controller's reservations, he replied, "I don't know what her problem is."

But the controller is staying the course.

"Our initial findings shows violations of the procurement process and warrant serious pause," the controller wrote, asking the Board of Elections to wait a few weeks until her investigation is complete, so they can vote on whether the voting machines contract should be voided.